JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Celia Alfreda Bell ("plaintiff" or, in context, "the claimant") challenges the final decision on behalf of defendant Commissioner of Social Security ("Commissioner") denying her applications for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") on the grounds that she is not disabled.
Plaintiff filed an application for SSI on 21 November 2013 and an application for DIB on 17 December 2013. Transcript of Proceedings ("Tr.") 20. In both applications she alleged the onset of disability on 20 December 2010. Tr. 20. The applications were denied initially and upon reconsideration, and plaintiff timely requested a hearing before an administrative law judge ("ALJ"). Tr. 20. An ALJ held the hearing on 30 June 2016. Tr. 43-98. On 12 October 2016, the ALJ issued a decision denying the applications. Tr. 20-36. In his decision, he declined to reopen the denial on 3 January 2013 of an application for DIB filed by plaintiff that plaintiff did not appeal and therefore determined the period of alleged disability in issue to start on 4 January 2013 pursuant to the principle of res judicata. Tr. 20.
Plaintiff timely requested review by the Appeals Council. Tr. 14-15. On 7 February 2017, the Appeals Council denied the request for review. Tr. 1-4. At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.984(d), 416.1484(d). On 6 April 2017, plaintiff sought judicial review of the Commissioner's decision in this court, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). Comp. (D.E. 1).
The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see id. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see id. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. §§ 423(d)(3), 1382c(a)(3)(D).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
Plaintiff was 50 years old on 4 January 2013 and 54 years old on the date of the hearing. Tr. 34 ¶ 7; 53. The ALJ found that she has at least a high school education (Tr. 34 ¶ 8) and past relevant work as a tire builder and tire trucker (Tr. 34 ¶ 6).
Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since 4 January 2013. Tr. 23 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: "degenerative joint disease of the right shoulder/right rotator cuff tear, status-post surgeries/lateral epicondylitis; neuropathy; obesity; hypertension; diabetes mellitus; asthma." Tr. 23 ¶ 3. At step three, the ALJ found that plaintiff's impairments did not meet or medically equal any of the listings. Tr. 24 ¶ 4.
The ALJ next determined that plaintiff had the RFC to perform a limited range of light work:
Tr. 26 ¶ 5.
Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was not capable of performing her past relevant work. Tr. 34 ¶ 6. At step five, the ALJ accepted the testimony of the vocational expert and found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of usher, furniture rental consultant, and school bus monitor. Tr. 34-35 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from 4 January 2013 through the date of the decision, 12 October 2016. Tr. 35 ¶ 11.
Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Perales, 402 U.S. at 401.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); Radford, 734 F.3d at 295-96.
Plaintiff's principal contention is that the ALJ erred by failing to perform a proper functional analysis regarding her neuropathy. She seeks remand of this case for a new hearing. The court finds that plaintiff's contention has merit and is dispositive of this appeal. It therefore declines to address plaintiff's other arguments.
As noted, a claimant's RFC is the most a claimant can still do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.645(a)(1). The assessment of a claimant's RFC must be based on all the relevant medical and other evidence in the record. Id. §§ 404.1545(a)(3), 416.645(a)(3). An ALJ's decision must state his RFC determination and provide the supporting rationale for it. See Mascio, 780 F.3d at 636.
In determining a claimant's RFC, Social Security Ruling 96-8p, 1996 WL 374184 (2 July 1996) requires the ALJ to perform a function-by-function analysis. The ruling states that the "RFC assessment must . . . assess [the individual's] work-related abilities on a function-by-function basis." Id., 1996 WL 374184, at *1. However, the Fourth Circuit has declined to adopt a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis. Mascio, 780 F.3d at 636. Rather, "`remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.'" Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D.N.C. 17 July 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p." (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. 26 July 2010))).
Here, the ALJ did not expressly assess plaintiff's ability to walk and stand after she was diagnosed with diabetes-related neuropathy in both of her lower extremities on 28 October 2014 (see Tr. 703). An express assessment was warranted, not simply because of this diagnosis and subsequent confirmatory diagnoses (see Tr. 895 (8 Aug. 2016); 898 (19 July 2016)), but because of plaintiffs testimony that her neuropathy severely limited her ability to walk and stand. Tr. 79-82. Specifically, she testified that she experiences tingling, pain, and pressure that require her to elevate her feet the majority of each day (Tr. 80); she can walk about 10 to 15 minutes at a time before having to rest (Tr. 81-82); and she can stand in one place only briefly because of a burning sensation (Tr. 82). While the ALJ found plaintiffs statements regarding her symptoms "not persuasive of disability," he does not expressly discuss this testimony in his decision. Tr. 27 ¶ 5.
Perhaps most significantly, the ALJ himself found, as stated, that plaintiffs neuropathy was a severe impairment. Tr. 23 ¶ 3. He therefore found that, in his own words, this impairment, alone or in combination with other impairments, "result[s] in functional limitations or restrictions having more than a minimal effect on the claimant's ability to perform basic work activities." Tr. 23 ¶ 3; see Tr. 20 C.F.R. §§ 404.1520(c), 416.920(c). Basic work activities include walking and standing. Tr. 20 C.F.R. §§ 404.1522(b)(1), 416.922(b)(1).
Nonetheless, by also finding in his RFC determination that plaintiff could perform light work, the ALJ determined, as noted, that plaintiff could stand or walk for up to six hours of an eight-hour workday. Soc. Sec. Ruling 83-10, 1983 WL 31251, at *5-6. The ALJ states that, besides plaintiffs right shoulder impairment,
Tr. 34 ¶ 5. But nowhere does the ALJ make clear how the ALJ's RFC determination accommodates the neuropathy impairment the ALJ found plaintiff to have—or even whether the RFC determination does accommodate the neuropathy.
Indeed, aside from his finding that plaintiffs neuropathy was a severe impairment, the ALJ makes only two express references to it. First, he finds that "(t]he record does not support the criteria for Section 11.14, regarding peripheral neuropathies, which requires persistent disorganization of motor function as described in 11.04B, in spite of prescribed treatment." Tr. 26 ¶ 4. This cursory finding is no substitute for proper functional assessment of plaintiffs bilateral neuropathy. It concerns a limitation on functionality, inability to move in an organized manner, not apparently implicated by plaintiffs neuropathy and, then, only whether this limitation is at the disabling level of severity, not some lesser level.
Second, the ALJ notes that in a medical certification form dated 16 December 2014, plaintiffs treating physician, Eddie N. Powell, M.D., included "bilateral lower polyneuropathy" among the grounds for his determination that plaintiff could not return to work from 23 May 2014 through 15 February 2015. Tr. 30 ¶ 5 (referring to Tr. 812). The ALJ does not discuss this particular ground cited by Dr. Powell. The ALJ gave no weight to Dr. Powell's opinion as a whole. Tr. 30 ¶ 5.
While the function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant, that is not the case here. The one state agency assessment the ALJ adopted (Tr. 121-48) was performed on 13 August 2014. It therefore predates plaintiffs diagnosis with bilateral neuropathy in her lower extremities.
The ALJ's failure to make clear his assessment of the functional limitations imposed by plaintiffs neuropathy, and whether or how he accommodated for them in his RFC determination, precludes meaningful substantial evidence review of the ALJ's decision and requires remand. Mascio, 780 F.3d at 636-37; see also Monroe v. Colvin, 826 F.3d 176, 189-91 (4th Cir. 2016).
The need for remand is accentuated because a determination that plaintiff is restricted to work at the sedentary level, the next level below the light exertional level, could, based on the ALJ's findings regarding the relevant vocational factors, result in the conclusion that plaintiff is disabled under Medical-Vocational Rule 201.14.
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 17) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 20) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3). In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 1 May 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
